Be sure to taste your words before you spit them out! - | Hudson McKenzie

Be sure to taste your words before you spit them out!

The Employment Appeal Tribunal has recently ruled in an employment dispute that an employee’s derogatory comments on social media was not protected disclosure, and could be used as a basis for dismissal as long as the reason was one that fell within s.98 of the Employment Rights Act 1996 (Act).

Background of the case

In The British Waterways Board v Smith, the Employment Appeal Tribunal overturned the decision of the Employment Tribunal, and asserted the dismissal of Mr. Smith was fair under s.98 of the Act.

Mr. Smith began working for The British Waterways Board (BW) in 2005. BW was responsible for inlands waterways for Scotland. Smith contended that his team had not been “happy”, with members raising different complaints about work conditions. Starting from 28 March 2012, Smith had been complaining to his supervisors and more senior personnel about his dissatisfaction towards his team leader, and a meditation hearing was about to take place on 23 May 2013. Yet, the meditation was cancelled because Smith was found leaving derogatory comments on Facebook, and BW decided to initiate an investigation instead.

In the disciplinary hearing following the investigation, the Director of operations found that his comments regarding supervisors and team leaders were highly offensive and inflammatory. Moreover, his alleged claim of drinking during standby would make the public lose confidence in the work of BW, regardless of whether he was actually dunk or not. As a result, he was dismissed on 4 June 2013. Subsequently, he appealed against the dismissal, and the hearing was held on 19 June 2013. After considering the full investigation and mitigating evidence, his dismissal was upheld on 24 June 2013.

Smith, being dissatisfied with the dismissal, filed his case to the Employment Tribunal. The Employment Tribunal considered the dismissal unfair mainly because of two reasons:

  • BW did not consider any of the mitigation put forward.
  • BW did not consider any sanctions other than dismissal.

On appeal, the Employment Appeal Tribunal disagreed with what the Employment Tribunal thought and affirmed the decision of dismissal. The reasons behind were that all relevant factors had already been taken into account in the disciplinary hearing on appeal, and the decision did comply with s.98 of the Act.

Implication of the case

With the popularity of social media nowadays, people become less aware of their behaviours on these sites, such as Facebook and Twitter. Unlike what they do in real life, everything on the Internet is accessible to the public, including someone not intended to learn about the comments. If any employees make any derogatory comments about their company, even without concrete reasons, people who saw the comments would immediately take that as the image or impression about the company because they believe those who work for it should know about it the best. Hence, what an employee does on social media has a strong impact on the public’s perception on the company itself.

Moreover, in cases that involve public service like the current case, public confidence in the employees’ service is particularly important because that may have a great impact on their livelihood. Therefore, employees of public service should observe a high standard of professionalism when they are working or even off from work. Any potential discrediting behaviour should never be carried out nor attempted in order to uphold the public confidence in public service. This is the reason why breaching public confidence can be a justification of dismissal in the current case.

In short, in order to avoid disputes over behaviours on social media, it is recommended that every company should adopt a robust social media policy in advance and made it known to every employee before any disputes arise. If you need any assistance with drawing up such a policy, please do not hesitate to contact us on +44(0)20 3318 5794 or at